# C_2019206EN.01004501.xml

| 17.6.2019 | EN | Official Journal of the European Union | C 206/45 |
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17.6.2019

EN

Official Journal of the European Union

C 206/45

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Action brought on 22 March 2019 — Vincenti v EUIPO

(Case T-174/19)

(2019/C 206/49)

Language of the case: German

Parties

Applicant: Guillaume Vincenti (Alicante, Spain) (represented by: H. Tettenborn, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Form of order sought

The applicant claims that the Court should:

| — | annul the decisions of the appointing authority of EUIPO, sent by letter of 6 June 2018, not to promote the applicant to the next grade (AST 8) in the 2014 promotion exercise, the 2015 promotion exercise, the 2016 promotion exercise and the 2017 promotion exercise; and |
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annul the decisions of the appointing authority of EUIPO, sent by letter of 6 June 2018, not to promote the applicant to the next grade (AST 8) in the 2014 promotion exercise, the 2015 promotion exercise, the 2016 promotion exercise and the 2017 promotion exercise; and

| — | order EUIPO to pay the costs. |
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order EUIPO to pay the costs.

Pleas in law and main arguments

The action is based on the following pleas in law.

| 1. | Infringement of Article 45 of the Staff Regulations of Officials of the European Union, manifest errors of assessment and incorrect implementation of, or failure to comply with, the judgment of 14 November 2017, Vincenti v EUIPO (T-586/16, EU:T:2017:803)
  In the context of the first plea, the applicant claims that the appointing authority of the defendant infringed Article 45 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), made manifest errors of assessment and failed to implement, or incorrectly implemented, the judgment of 14 November 2017, Vincenti v EUIPO (T-586/16, EU:T:2017:803), in so far as that authority did not treat the applicant as though it had, at the material times, allowed him to take part in the individual reporting procedures, but instead carried out an overall assessment when the contested decisions were adopted on 6 June 2018. The refusal to promote the applicant should, in accordance with that judgment, not have been based on circumstances which, at the time when the appointing authority would have been required to make a decision, were not yet known to the Office.
  The applicant further submits that the overall refusal to promote him for four consecutive years by reference to the same conduct is unlawful because it constitutes a similarly severe penalty to that of Article 9(1)(e) and (f) of Annex IX to the Staff Regulations and therefore ultimately constitutes a sustained and punitive refusal to promote him which circumvents the rights of the defence to which he is entitled in disciplinary proceedings, as well as ‘double jeopardy’.
  The applicant also claims that the contested decisions of the Office unlawfully discriminated against him on account of his long-term illness, since the defendant did not positively count the time of his illness as time in which he had improved the conduct for which he was reproached, which constitutes a manifest error of assessment and a misapplication of Article 45 of the Staff Regulations and the judgment of 14 November 2017, Vincenti v EUIPO (T-586/16, EU:T:2017:803). |
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1.

Infringement of Article 45 of the Staff Regulations of Officials of the European Union, manifest errors of assessment and incorrect implementation of, or failure to comply with, the judgment of 14 November 2017, Vincenti v EUIPO (T-586/16, EU:T:2017:803)

In the context of the first plea, the applicant claims that the appointing authority of the defendant infringed Article 45 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), made manifest errors of assessment and failed to implement, or incorrectly implemented, the judgment of 14 November 2017, Vincenti v EUIPO (T-586/16, EU:T:2017:803), in so far as that authority did not treat the applicant as though it had, at the material times, allowed him to take part in the individual reporting procedures, but instead carried out an overall assessment when the contested decisions were adopted on 6 June 2018. The refusal to promote the applicant should, in accordance with that judgment, not have been based on circumstances which, at the time when the appointing authority would have been required to make a decision, were not yet known to the Office.

The applicant further submits that the overall refusal to promote him for four consecutive years by reference to the same conduct is unlawful because it constitutes a similarly severe penalty to that of Article 9(1)(e) and (f) of Annex IX to the Staff Regulations and therefore ultimately constitutes a sustained and punitive refusal to promote him which circumvents the rights of the defence to which he is entitled in disciplinary proceedings, as well as ‘double jeopardy’.

The applicant also claims that the contested decisions of the Office unlawfully discriminated against him on account of his long-term illness, since the defendant did not positively count the time of his illness as time in which he had improved the conduct for which he was reproached, which constitutes a manifest error of assessment and a misapplication of Article 45 of the Staff Regulations and the judgment of 14 November 2017, Vincenti v EUIPO (T-586/16, EU:T:2017:803).

| 2. | Infringement of the applicant’s right to be heard under Article 41(2)(a) of the Charter of Fundamental Rights of the European Union and of the applicant’s procedural rights under Article 5 of Commission Decision C(2013) 8968 final of 16 December 2013 laying down general provisions for implementing Article 45 of the Staff Regulations, in particular under Article 5(5) and (7) of that decision
  In the context of the second plea, the applicant claims that the defendant infringed the applicant’s fundamental right to be heard before the adoption of a decision adversely affecting him, after the applicant was not given the opportunity to make his views known beforehand. This is not disputed by the defendant.
  The defendant therefore also directly infringed the applicant’s procedural rights under Article 5 of Commission Decision C(2013) 8968 final of 16 December 2013 laying down general provisions for implementing Article 45 of the Staff Regulations, in particular under Article 5(5) and (7) of that decision, which, moreover, reflect the considerable importance of the fundamental right to be heard that was infringed and confirm that the applicant also had the right to be heard in the present case before the adoption of the contested decisions. |
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2.

Infringement of the applicant’s right to be heard under Article 41(2)(a) of the Charter of Fundamental Rights of the European Union and of the applicant’s procedural rights under Article 5 of Commission Decision C(2013) 8968 final of 16 December 2013 laying down general provisions for implementing Article 45 of the Staff Regulations, in particular under Article 5(5) and (7) of that decision

In the context of the second plea, the applicant claims that the defendant infringed the applicant’s fundamental right to be heard before the adoption of a decision adversely affecting him, after the applicant was not given the opportunity to make his views known beforehand. This is not disputed by the defendant.

The defendant therefore also directly infringed the applicant’s procedural rights under Article 5 of Commission Decision C(2013) 8968 final of 16 December 2013 laying down general provisions for implementing Article 45 of the Staff Regulations, in particular under Article 5(5) and (7) of that decision, which, moreover, reflect the considerable importance of the fundamental right to be heard that was infringed and confirm that the applicant also had the right to be heard in the present case before the adoption of the contested decisions.

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